Sri Monoranjan Chowdhury and Others vs Sri Paritosh Das

Prasenjit Mandal, J.—This second appeal is at the instance of the plaintiffs/respondents and is directed against the judgment and order dated March 21, 2006 passed by the learned Additional District Judge, 5th Court, Paschim Medinipur in Other Appeal No. 7 of 2005 thereby reversing the judgment and decree dated December 21, 2004 passed by the learned Civil Judge (Junior Division), 2nd Court, Paschim Medinipur in Other Suit No. 35 of 2001. The plaintiffs/appellants herein instituted the aforesaid suit for eviction and other consequential reliefs. They have contended that the suit property as described in the schedule to the plaint originally belonged to the defendant, Paritosh Das. The total land under the said plot in question was to the extent of 18 decimals and by 4 deeds of sale executed in the years 1967, 1968 & 1969, the defendant had sold the entire land under the plot in question in favour of the plaintiffs. He had a mud house on the suit land and he was allowed to stay thereat, which has been described in schedule ''A'' to the plaint upon payment of licence fee at the rate of Rs. 10/- per month and then at the rate of Rs. 15/- per month. The plaintiffs had raised a two-storied pucca construction on the ''B'' schedule land and they began to reside thereon. There was a passage measuring 6 ft. wide along the Western side of ''A'' schedule property. In the last part of December 2000, the defendant attempted to encroach 2 ft. wide passage adjoining to ''A'' schedule property. An alteration took place over it and thereafter, the plaintiffs cancelled the licence on January 15, 2001. On being directed, the defendant did not deliver khas possession of the suit property and as such, the suit has been filed for the reliefs already stated.

The defendant is contesting the said suit by filing a written statement contending, inter alia, that the suit is not maintainable in its present form and it is barred by limitation and under the provision of the Specific Relief Act. Adequate Court fees have not been paid. In fact, out of 18 decimals of land, he had sold 14.5 decimals of land only from the plot in question and he is in possession of the rest 3.5 decimals of land. He is not at all a licensee as contended by the plaintiffs, rather he has been residing in his own mud-built house. The allegations against him are wrong. He has acquired title to the suit property by adverse possession. The plaintiffs have no cause of action to file the suit and so, the suit should be dismissed.

Both the parties adduced evidence in support of the respective contentions and upon analysis of evidence, the learned Trial Judge decreed the suit. Being aggrieved, the defendant preferred an appeal and then the learned 1st Appellate Court allowed the appeal setting aside the judgment and decree passed by the learned Trial Judge. Being aggrieved by such judgment and decree of reversion, this second appeal has been preferred by the plaintiffs.

At the time of admission of the appeal, the following substantial questions of law were framed for decision in this second appeal:-

(I) Whether the learned court of appeal below committed substantial error of law in reversing the judgment and decree passed by the learned trial judge by holding that the suit was barred by Limitation Act and as same was not filed within twelve years from 1969 by totally over-looking the fact that after the coming into operation of the Limitation Act of 1963, so long the title of the plaintiffs is not extinguished by adverse possession, his suit is maintainable for recovery of possession?

(II) Whether the learned court of appeal below committed substantial error of law in holding that the suit was barred by limitation notwithstanding the fact that the said court also upheld the finding of the learned trial judge that plaintiffs acquired title from the defendant himself by virtue of four different deeds?

(III) Whether the learned court of appeal below committed substantial error of law in dismissing the suit on the ground that suit ought to have been framed as one for recovery of possession from trespasser by overlooking the fact that even on the basis of the present suit the court could direct the appellants to pay ad valorem court fees on the basis of valuation of the property instead of dismissing the suit on that ground when title to the property has been established?

Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that admittedly the suit property originally belonged to the defendant. The plaintiffs have claimed that, by 4 deeds of sale executed in the year ranging from 1967 to 1969 (marked Exhibit-1, 2, 3 & 4), the defendant had sold his right, title and interest in the suit property in favour of the plaintiffs and that the possession for the same was also delivered.

The claim of the plaintiffs that the suit property had been sold by the defendant is substantiated by the relevant deeds of sale marked Exhibit-1, 2, 3 & 4. So far as the deed no. 1, 2 & 4 are concerned, there is no dispute as to the execution and registration. The defendant has contended that the execution of the deed dated March 21, 1968 (marked Exhibit-3) was not properly done and so, this deed is not valid. But, he did not take any step for declaration of the deed is void and inoperative.

From the materials on record, I find that the deed (Exhibit-3) has been duly proved and it is apparent that the said property had also been sold by the defendant to the plaintiffs. In order to come to a specific conclusion in this regard, the other attending circumstances are to be considered.

I find that after the purchase of the suit property, the plaintiffs had raised construction on the ''B'' schedule property and rent had been paid to the Government. The mutation of the suit property had also been done with the concerned municipality and tax had been paid to the municipality. So far as the possession of ''A'' schedule property by the defendant is concerned, the plaintiffs have contended that after the sale of the property and delivery of possession of the same, the defendant was in difficulty and there was a mud with straw-headed house on ''A'' schedule land and since the defendant was in need of an accommodation they allowed him to stay there under a licence at the licence fee of Rs. 10/-, which was enhanced to Rs. 15/- subsequently. Though there was no supporting witness in support of that, the attending circumstances such as taking the recourse of act of possession by mutating their names, paying rents to the Government, etc., they had shown the act of possession over the suit property.

On the other hand, the defendant has filed the rent receipts which almost relate to the post-filing period and so, these documents need not be considered. So far as the payment of electricity by the defendant is concerned, I find since he is in occupation of the same, he is enjoying the electricity. So, the payment of electric charges in the name of defendant is not a determining factor or a factor to believe that defendant is the owner of the same. Any person in possession of a property, now, as owner, tenant or licensee can well take electricity for use of the premises. So, these documents filed by the defendant cannot be taken as the proof of possession at all as owner of the suit property.

On the other hand, from the documents filed by the plaintiffs and their conduct with respect to the suit property, I am of the view that the plaintiffs had taken all such steps as are expected in case of ownership over the entire land.

The learned Advocate for the respondent has contended as to vagueness of the suit property. But, from the evidence on record, I find that the suit property has been described by boundaries supported by the sketch map. So, the provisions of Order 7 Rule 3 of the C.P.C. have been complied with. The deed dated July 9, 1969 (Exhibit-4) lays down the particulars of the suit property. So, such contention of the defendant cannot be accepted. In my view, the schedule of the suit property cannot be described as ambiguous at all. So, from the materials on record, it appears that the suit property can well be identified and so, the concurrent findings of both the Courts below as to the identity of the suit property cannot be a matter of dispute in the second appeal.

On the other hand, the defendants have filed the L.R. record of rights and possibly that has been recorded in his name as he is in possession of the ''A'' schedule property and the rent receipt, electric bills, tax receipts, etc. may be obtained in his name, in view of the fact that he is in possession of the same. But, there are not the documents of title. The question is that what is the status of the defendant with regard to the ''A'' schedule property? By the sale deeds Exhibit Nos. 1 to 4, he had sold the entire plot of land in question. So, he cannot claim as the owner of the same. He is not claiming the same as a tenant. So, the other category of possession that may be as a licensee or a trespasser. Though the learned Trial Judge has described the defendant as a trespasser and the Appellate Court has endorsed the same view, in my view, this finding cannot be supported because according to his contention, he cannot claim adverse possession against the other co-owners who had acquired title by sale deeds such as Exhibit Nos. 1, 2 & 4. Above all, there must be clear evidence when the possession of the defendant had become adverse to the plaintiffs. There must be evidence that the defendant is denying the title of the plaintiffs from a particular date or period with the knowledge of the plaintiffs. There is no such evidence on the part of the defendant. Mr. Sahoo has also referred to the decisions of Gaya Parshad Dikshit Vs. Dr. Nirmal Chander and Another, and Indira Vs. Arumugam and Another, and thus, he has contended that in order to claim adverse possession, the defendant is required to show the overt act showing hostile title against the true owner. In the instant case there being no such proof of claim hostile title by the defendant or overt act, this plea cannot be entertained in view of these decisions.

So, the concurrent findings of trespass by the Courts below are without any evidence. Such findings cannot be accepted in the second appeal. In coming to such conclusion, I have relied on the decision of Kashmir Singh Vs. Harnam Singh and Another, So, the contention of the defendant as to adverse possession since August, 1969 cannot be accepted at all. So the only category under which the defendant could possess the ''A'' schedule property of the plaintiffs is licence and this is the case of the plaintiffs. So, the status of the defendant with regard to the ''A'' schedule property was nothing but a licensee under the plaintiffs. The licence can be revoked at any time and as per the evidence on record, the plaintiffs had revoked the licence on January 15, 2001 verbally and requested the defendant to deliver the vacant possession of ''A'' schedule property by February 15, 2001 in vain. Thereafter, he had filed the suit on February 22, 2001. Thus, I find that cause of action to file the suit for recovery of possession against the licensee has been proved and in that case the suit can well be maintained in present form. The plaintiffs'' claim of the reliefs is based on title. Therefore, the findings of the learned Trial Judge in this regard is convincing, well-founded and believable.

Mr. Pushpendu Bikash Sahoo, learned Advocate appearing for the appellant has referred to the decision of Tarumoni Mondal and Others Vs. Prafulla Kumar Mondal and Others particularly the paragraph no. 23 & 24, which lays down that in the case of recovery of possession against a licensee, the status of the possession with regard to the property in question shall be held to be trespassers only after revocation of the alleged licence and so, the plaintiffs are entitled to get a decree for recovery of possession. In fact, it is the case of the plaintiffs. So, this decision supports the plaint case also.

As regards, the plea of limitation in view of the Articles 64 & 65 of the Limitation Act, 1963, Mr. P.B. Sahoo has referred to the decision of AIR 1985 Orissa 40 particularly the paragraph no. 12 and thus, he has contended that the defendant having not specifically pleaded when his possession became adverse to the plaintiffs, the suit cannot be treated as one under Article 65 of the Limitation Act for the reliefs stated. There being no such specific averment in the written statement and, in fact, as per evidence on record, in my view, the plaintiffs having filed the suit after revocation of licence on January 15, 2001, suit cannot be stated to be barred by limitation on the ground that though the last deed was executed in July 1969 and the suit was filed in the year 2001, i.e., beyond 12 years since August, 1969. So, this decision is in support of the plaint case and the plaintiffs have rightly proved the cause of action to file a suit for recovery of possession against a licensee after revocation of the licence.

Mr. Sahoo has referred to the decision of Smt. Gitarani Paul Vs. Dibyendra Kundu alias Dibyendra Kumar Kundu, and thus, he has contended that in dealing with a second appeal when the plaintiffs have proved their title, question of ascertaining the date of dispossession should not have been gone into by the High Court.

On the other hand, Mr. Ganesh Shrivastava, learned Advocate appearing for the defendant has referred to the decision of Saikhom Gouramani Singh & Ors. v. Saikhom Ningthem Singh & Ors. reported in 2001 WBLR (SC) 62 over the contention of Limitation Act according to Articles 64 & 65 of the said Act of 1963. With due respect to him, since the contention of adverse possession of the defendant has not been proved, this decision will not be applicable at all.

He has also referred to the decision o Ramiah Vs. N. Narayana Reddy (Dead) by LRs., that suit based on title, recovery of possession against a trespasser will be governed under Article 65 of the Limitation Act, 1963. In view of the findings arrived above, in my view, this decision will also not be applicable.

As regards the payment of Court fees over the suit, Mr. Shrivastava has also referred to the decision of Smt. Nilima Bose Vs. Santosh Kumar Ghosh, particularly the paragraph no. 17 & 18 and thus, he has contended that plaintiffs are required to pay the Court fees as per Section 7(v)(a) of the West Bengal Court Fees Act, 1970. Ad valorem Court fees must be paid accordingly. Since, the defendant has failed to establish its stand and the plaintiffs have proved the title over the suit property and he has described the defendant as a licensee, in my view, this decision will not render any help to the defendant at all and the question of payment of ad valorem Court fees according to the provision of 7(v)(a) of the West Bengal Court Fees Act does not arise at all. The Court fees are required to be paid, in my view, u/s 7(vi)(a) of the said Act of 1970.

Lastly, Mr. Shrivastava has contended that the plaintiffs did not pray for decree of declaration of title in support of their claim and so, the suit is hit by Section 34 of the Specific Relief Act. In the instant case, in my view, the question of title is not of much importance as the plaintiffs have proved that though the defendant was the original owner of the suit property, he had sold the same to the plaintiffs by 4 deeds marked Exhibit-1 to 4. So, the suit in the present form for recovery of possession against a licensee, in my view, is quite maintainable without praying for a decree of declaration of title.

Having due regard to the submissions of the learned Advocates of both the sides, in my view, the plaintiffs have been successful in proving the plaint case that the defendant became a licensee after sale in respect of the ''A'' schedule property on his request and so, the suit is quite maintainable in its present form and law. Immediately upon cancellation of the licence, the suit for recovery of possession and other reliefs has been filed. So, the suit is not barred by limitation at all.

Under such circumstances the suit cannot be stated to be a bar under the provisions of the Specific Relief Act for not praying a decree of declaration of title in the said suit. The overt act which is essential for claiming adverse possession by the defendant as observed above, has not been proved by the defendant at all and so, his contention of possession adverse to the plaintiffs being the owner cannot be accepted at all.

Similarly, his contention that after sale of the land total in 14.5 decimals of land still he remained in possession of 3.5 decimals of land as owner cannot be believed at all. Therefore, in my view, the defence stand as taken by the respondent has no legs to stand.

On the other hand, while dealing with the appeal, the learned 1st Appellate Court has misdirected himself by taking the provisions of Articles 64 & 65 of the Limitation Act. He has described that the suit for recovery of possession based on proprietary title is governed by Article 65 of the Limitation Act and so, possession must be claimed within 12 years. This finding is not acceptable at all inasmuch as it is not the suit for recovery of possession against the trespasser, but, a suit for recovery of possession against a licensee so, the question of limitation as observed by the learned 1st Appellate Court by describing that the suit is governed by Article 65 of the Limitation Act cannot be accepted at all. That is why, the learned 1st Appellate Court is misdirected himself in reversing the judgment and decree by the learned Trial Judge by holding that the suit is barred by limitation. The suit is quite maintainable in its present from for recovery of possession against the licensee and the plaintiffs are not required to frame the suit as one for recovery of possession from the trespasser. The Appellate Court has, therefore, committed a substantial error of law in dismissing the suit by holding that the suit is against the trespasser. The judgment and decree of the learned 1st Appellate Court is not, therefore, sustainable.

Accordingly, in my view, this appeal should be allowed and judgment and decree passed by the learned 1st Appellate Court should be set aside thereby affirming the judgment and decree passed by the learned Trial Judge.

The second appeal is, therefore, allowed. The judgment and decree dated March 21, 2006 passed by the learned 1st Appellate Court stands set aside and the judgment and decree dated December 21, 2004 passed by the learned Trial Judge is hereby affirmed. Send the L.C.R. along with a copy of this judgment to the Courts below.

Considering the circumstances, there will be no order to as costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.